Jimenez v. Florida Dept. of Corrections, No. 06-14523.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Per Curiam
• Citation: 481 F.3d 1337
• Parties: Jose JIMENEZ, Petitioner-Appellant, Cross-Appellee, v. FLORIDA DEPARTMENT OF CORRECTIONS, Secretary James McDonough, Respondent-Appellee, Cross-Appellant.
• Docket Number: No. 06-14523.
• Decision Date: 23 March 2007

481 F.3d 1337 Jose JIMENEZ, Petitioner-Appellant, Cross-Appellee,
v.
FLORIDA DEPARTMENT OF CORRECTIONS, Secretary James McDonough, Respondent-Appellee, Cross-Appellant. No. 06-14523. United States Court of Appeals, Eleventh Circuit. March 23, 2007.

[481 F.3d 1340]

Martin J. McClain (Court-Appointed), Wilton Manors, FL, for Jimenez.

Sandra Sue Jaggard, Miami, FL, for Appellee.

On Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Jose Jimenez, a Florida prisoner under a sentence of death, seeks a certificate of appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2254 federal habeas corpus petition. We deny the application for a COA.

I. BACKGROUND

In 1994, Jimenez was convicted for first-degree murder and burglary with assault and battery in an occupied dwelling. The jury unanimously recommended Jimenez receive a death sentence for the 1992 beating and stabbing of sixty-three-year-old Phyllis Minas in her home. Jimenez v. Florida, 703 So.2d 437, 438 (Fla.1997). The trial judge sentenced Jimenez to death. In 1998, the Florida Supreme Court affirmed his conviction and sentence. Id. at 442.

In 2000, Jimenez filed for relief under Florida Rule of Criminal Procedure 3.850. The Florida courts denied his motion. In 2002, Jimenez filed a habeas corpus petition with the Florida Supreme Court. The court denied his petition for relief.

In 2004, Jimenez filed his petition for federal habeas corpus relief in the United States District Court for the Southern District of Florida. In his petition to the district court, Jimenez raised the following twelve claims: (1) the Florida Supreme Court's refusal on collateral review to apply a subsequent construction of the burglary statute to the conduct for which Jimenez was convicted violated due process and the Eighth Amendment prohibition against the arbitrary and capricious imposition of a death sentence; (2) Jimenez was deprived of a full and fair state post-conviction process in violation of the Sixth, Eighth, and Fourteenth Amendments; (3) Jimenez was deprived of due process by an ex parte contact between the judge presiding over his state post-conviction proceeding and his court-appointed attorney outside Jimenez's presence; (4) the state failed to disclose exculpatory evidence and/or knowingly presented misleading evidence, and/or defense counsel unreasonably failed to discover and present exculpatory evidence, in violation of the Fifth, Sixth, and Eighth Amendments; (5) Jimenez was denied a fair trial when the state failed to correct false testimony and presented improper argument in violation of

481 F.3d 1341

the Sixth, Eighth, and Fourteenth Amendments; (6) Jimenez was denied due process on the basis of trial judge bias and ex parte contact with the prosecutor; (7) the trial court failed to assure Jimenez's presence during critical stages of the capital proceedings in violation of the Sixth, Eighth, and Fourteenth Amendments; (8) Jimenez was improperly denied the right to cross-examine witnesses in violation of the Sixth, Eighth, and Fourteenth Amendments; (9) the trial court failed to adequately inquire into Jimenez's allegations of a conflict on the part of his court-appointed counsel in violation of the Sixth, Eighth, and Fourteenth Amendments; (10) there was insufficient evidence to support a conviction of first-degree murder; (11) the prosecutor's closing argument in the penalty phase was in violation of the Eighth and Fourteenth Amendments, and trial counsel was ineffective for failing to adequately preserve the issue; and (12) the Florida capital sentencing scheme violates the Sixth Amendment by failing to require that the jury determine all elements of the crime of capital first-degree murder which made Jimenez eligible for a death sentence. The district court denied relief on all claims.¹ Claims 4 and 5 of Jimenez's petition to the district court rambled in recounting his allegations. The district court organized claim 4 into 14 issues and claim 5 into 3 allegations. For clarity, we follow the district court's organization of these claims in our discussion.

On October 10, 2006, Jimenez filed an application for COA with this Court.² Jimenez requests a COA on claims 1, 2, 4, and 5 of the 12 claims he petitioned to the district court. He also requests a COA on "all of the other claims that the District Court found procedurally barred by virtue of state court registry counsel's conduct."

II. STANDARD FOR GRANTING A COA

This Court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Jimenez must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000)). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484, 120 S.Ct. at 1604.

III. DISCUSSION

A. Claim One: Florida Supreme Court's Refusal to Apply Delgado Retroactively

Jimenez asserts the Florida Supreme Court's refusal to apply retroactively

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the construction of the burglary statute in Delgado v. State, 776 So.2d 233 (Fla. 2000), denied him due process of law and violated his rights under the Eighth Amendment. However, Jimenez did not exhaust his state remedies on this claim. The habeas statute requires applicants to exhaust all available state law remedies. 28 U.S.C. § 2254(b)(1)(A). A petitioner must alert state courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995). "Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues." Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.1998).

If a petitioner has not exhausted all claims in a petition, a federal court must dismiss without prejudice both exhausted and unexhausted claims to allow petitioners to return to state court to exhaust state remedies for all claims. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). However, if unexhausted claims would be procedurally barred in state court under the state's law of procedural default, the federal court may consider the barred claims as having no basis for federal habeas relief. Snowden, 135 F.3d at 736 (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)).

Florida law procedurally bars new claims or claims that have already been raised in prior petitions when "the...